Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of the Republic of Lithuania Law
on Supplementing Articles 4 and 14 and Amending
Article 5 of the Law on the Territorial
Administrative Units of the Republic of Lithuania
and their Boundaries and the Republic of Lithuania
Law on the Enforcement of the Law on Supplementing
Articles 4 and 14 and Amending Article 5 of the
Law on the Territorial Administrative Units of the
Republic of Lithuania and their Boundaries with
the Constitution of the Republic of Lithuania, as
well as on the compliance of Government of the
Republic of Lithuania Resolution No. 1307 "On a
Draft Law on Amending Articles 4 and 5 of the Law
on the Territorial Administrative Units of the
Republic of Lithuania and their Boundaries and a
Draft Law on the Enforcement of the Law on
Amending Articles 4 and 5 of the Law on the
Territorial Administrative Units of the Republic
of Lithuania and their Boundaries" of 29 November
1999 with the Constitution of the Republic of
Lithuania, Articles 7 and 13 of the Republic of
Lithuania Law on the Territorial Administrative
Units of the Republic of Lithuania and their
Boundaries (wording of 4 May 1999) and Item 30 of
Article 15 of the Republic of Lithuania Law on
Local Self-Government (wording of 17 November 1998)
Vilnius, 28 June 2001
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court Egidijus
Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas
Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representatives of the petitioner-a group of members
of the Seimas of the Republic of Lithuania-Vytenis Povilas
Andriukaitis and Petras Papovas, both of them are Seimas
members,
the representative of the party concerned-the Seimas of
the Republic of Lithuania-Romualdas Varslauskas, a senior
consultant at the Legal Department of the Office of the Seimas,
the representatives of the party concerned-the Government
of the Republic of Lithuania-Adolfas Norkūnas, Head of the
Self-Government Policy Division of the Public Administration
Department of the Ministry of Internal Affairs of the Republic
of Lithuania, and Nerijus Rudaitis, Head of the Legal Expert
Examination Division of the Law Department of the same
ministry,
pursuant to Paragraph 1 of Article 102 of the Constitution
of the Republic of Lithuania and Paragraph 1 of Article 1 of
the Republic of Lithuania Law on the Constitutional Court, on 6
and 18 June 2001 in its public hearing conducted the
investigation of Case No. 9/2000 subsequent to the petition
submitted to the Court by the petitioner-a group of members of
the Seimas of the Republic of Lithuania-requesting the
investigation into the compliance of the Republic of Lithuania
Law on Supplementing Articles 4 and 14 and Amending Article 5
of the Law on the Territorial Administrative Units of the
Republic of Lithuania and their Boundaries, the Republic of
Lithuania Law on the Enforcement of the Law on Supplementing
Articles 4 and 14 and Amending Article 5 of the Law on the
Territorial Administrative Units of the Republic of Lithuania
and their Boundaries and the Republic of Lithuania Law on
Amending Articles 3 and 4 of the Law on the Enforcement of the
Law on Supplementing Articles 4 and 14 and Amending Article 5
of the Law on the Territorial Administrative Units of the
Republic of Lithuania and their Boundaries with Paragraph 1 of
Article 69, Paragraph 1 of Article 33 and Paragraph 2 of
Article 120 of the Constitution of the Republic of Lithuania,
as well as into the compliance of Government of the Republic of
Lithuania Resolution No. 1307 "On a Draft Law on Amending
Articles 4 and 5 of the Law on the Territorial Administrative
Units of the Republic of Lithuania and their Boundaries and a
Draft Law on the Enforcement of the Law on Amending Articles 4
and 5 of the Law on the Territorial Administrative Units of the
Republic of Lithuania and their Boundaries" of 29 November 1999
with Item 2 of Article 94, Paragraph 1 of Article 33 and
Paragraph 2 of Article 120 of the Constitution of the Republic
of Lithuania, Articles 7 and 13 of the Republic of Lithuania
Law on the Territorial Administrative Units of the Republic of
Lithuania and their Boundaries (wording of 4 May 1999) and Item
30 of Article 15 of the Republic of Lithuania Law on Local
Self-Government (wording of 17 November 1998).
The Constitutional Court
has established:
I
On 29 November 1999, the Government adopted Resolution No.
1307 "On a Draft Law on Amending Articles 4 and 5 of the Law on
the Territorial Administrative Units of the Republic of
Lithuania and their Boundaries and a Draft Law on the
Enforcement of the Law on Amending Articles 4 and 5 of the Law
on the Territorial Administrative Units of the Republic of
Lithuania and their Boundaries", which the Constitutional Court
received together with the petition. On 21 December 1999, the
Seimas passed the Law on Supplementing Articles 4 and 14 and
Amending Article 5 of the Law on the Territorial Administrative
Units of the Republic of Lithuania and their Boundaries
(Official Gazette Valstybės žinios, 1999, No. 109-3176), the
Law on the Enforcement of the Law on Supplementing Articles 4
and 14 and Amending Article 5 of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries (Official Gazette Valstybės žinios, 1999, No.
109-3177), and, on 12 January 2000, it passed the Law on
Amending Articles 3 and 4 of the Law on the Enforcement of the
Law on Supplementing Articles 4 and 14 and Amending Article 5
of the Law on the Territorial Administrative Units of the
Republic of Lithuania and their Boundaries (Official Gazette
Valstybės žinios, 2000, No. 6-154).
The petitioner-a group of Seimas members-requests the
Constitutional Court to consider whether
1) Resolution No. 1307 "On a Draft Law on Amending
Articles 4 and 5 of the Law on the Territorial Administrative
Units of the Republic of Lithuania and their Boundaries and a
Draft Law on the Enforcement of the Law on Amending Articles 4
and 5 of the Law on the Territorial Administrative Units of the
Republic of Lithuania and their Boundaries" (hereinafter also
referred to as the disputed resolution) adopted by the
Government on 29 November 1999 is in compliance with Item 2 of
Article 94, Paragraph 1 of Article 33 and Paragraph 2 of
Article 120 of the Constitution, Articles 7 and 13 of the Law
on the Territorial Administrative Units of the Republic of
Lithuania and their Boundaries (wording of 4 May 1999) and Item
30 of Article 15 of the Law on Local Self-Government (wording
of 17 November 1998);
2) the Law on Supplementing Articles 4 and 14 and Amending
Article 5 of the Law on the Territorial Administrative Units of
the Republic of Lithuania and their Boundaries and the Law on
the Enforcement of the Law on Supplementing Articles 4 and 14
and Amending Article 5 of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries, both of which were passed by the Seimas on 21
December 1999, as well as the Law on Amending Articles 3 and 4
of the Law on the Enforcement of the Law on Supplementing
Articles 4 and 14 and Amending Article 5 of the Law on the
Territorial Administrative Units of the Republic of Lithuania
and their Boundaries, which was passed by the Seimas on 12
January 2000, are in compliance with Paragraph 1 of Article 69,
Paragraph 1 of Article 33 and Paragraph 2 of Article 120 of the
Constitution.
II
The request of the petitioner is based on the following
arguments.
Article 7 of the Law on the Territorial Administrative
Units of the Republic of Lithuania and their Boundaries
(wording of 4 May 1999) provides that the local governments
shall be established and abolished, as well as their boundaries
and centres shall be set and changed by the Seimas on the
proposal of the Government, and that prior to addressing the
Seimas, the Government shall take into consideration the
opinion of the community of the residential area, the proposals
of the local government council, shall organise the opinion
poll of local residents and shall adopt a decision regarding
the proposal to the Seimas. Article 13 of the said law provides
that the institution empowered by the Government shall consider
and present conclusions to the Government on the proposals to
establish or abolish local governments, other administrative
units of the territory and residential areas and to set or
change their boundaries and that the institution empowered by
the Government, when presenting a conclusion on the
establishment of administrative units, setting or changing
their boundaries, shall present the results of the opinion poll
of the local residents, their requests and the proposals of the
local government council, and shall assess the reasonableness
and expediency of the opinion of the community of the
residential area and the local government council. The
petitioner maintains that the institution empowered by the
Government, i.e. the Ministry of Public Administration Reforms
and Local Government Affairs, neither requested nor received
proposals form local government councils as regards changing
the boundaries of local governments, nor did it organise any
opinion polls of local residents under the procedure
established by the Government.
In the opinion of the petitioner, the Government adopted
the disputed resolution without following the provisions of
Articles 7 and 13 of the Law on the Territorial Administrative
Units of the Republic of Lithuania and their Boundaries
(wording of 4 May 1999).
The petitioner also points out that the Government adopted
the resolution to submit draft laws to the Seimas concerning
changing the boundaries of local governments in the absence of
any proposals of local government councils and that it did not
grant an opportunity for citizens to take part in the opinion
poll under the procedure established by the Government,
therefore, in the opinion of the petitioner, the disputed
resolution may also be in conflict with Item 30 of Article 15
of the Law on Local Self-Government (wording of 17 November
1998) and Item 2 of Article 94, Paragraph 1 of Article 33 and
Paragraph 2 of Article 120 of the Constitution.
The petitioner maintains that the Seimas adopted the
disputed laws without following the procedures provided for in
Articles 7 and 13 of the Law on the Territorial Administrative
Units of the Republic of Lithuania and their Boundaries
(wording of 4 May 1999), therefore there are doubts whether the
disputed laws are in compliance with Item 1 of Article 69,
Paragraph 1 of Article 33 and Paragraph 2 of Article 120 of the
Constitution.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representatives of the party concerned-the
Seimas-B. Kleponis, an advisor to the Seimas Committee on State
Administration and Local Authorities, and Romualdas
Varslauskas, a senior consultant at the Legal Department of the
Office of the Seimas.
1. B. Kleponis explained that a legal act establishing
procedures of enactment of laws at the Seimas is the Statute of
the Seimas. Adopting the disputed laws, the Seimas did not
violate the procedures provided for in the Statute of the
Seimas. The disputed laws do not restrict the rights of
citizens to participate in Seimas elections, President of the
Republic of Lithuania elections, local government councils
elections and referenda, they do not restrict the rights of
citizens to join into societies or associations, to criticize
the work of state institutions and their officers, and to
appeal against their decisions, they do not establish any
restrictions to serve in a state office. In the course of the
preparation of the papers on the administrative reform of the
territory of the Republic of Lithuania, the Seimas and the
Government did not restrict and did not attempt to restrict the
rights of local governments to state their opinion as regards
the new administrative territorial units of the Republic of
Lithuania.
In the opinion of B. Kleponis, the disputed laws are in
compliance with Paragraph 1 of Article 69, Paragraph 1 of
Article 33 and Paragraph 2 of Article 120 of the Constitution.
2. R. Varslauskas noted that the disputed resolution was
adopted by following the laws properly. Under Paragraph 2 of
Article 96 of the Constitution, the then Minister of Public
Administration Reforms and Local Government Affairs was heading
the area of administration commissioned to him, he was
responsible to the Seimas, the President of the Republic of
Lithuania and directly subordinate to the Prime Minister.
Presenting the draft disputed laws in the Seimas sitting, the
Minister maintained that the opinion of the communities had
been analysed very carefully. Thus there are not any sufficient
grounds to assert that the disputed resolution is in conflict
with Articles 7 and 13 of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries (wording of 4 May 1999) and Item 30 of Article 15 of
the Law on Local Self-Government (wording of 17 November 1998),
as well as Item 2 of Article 94, Paragraph 1 of Article 33 and
Paragraph 2 of Article 120 of the Constitution.
R. Varslauskas also emphasised that the disputed laws were
adopted under the procedure established in the Statute of the
Seimas, therefore there are no legal grounds to maintain that
they were adopted in violation of Paragraph 1 of Article 69 of
the Constitution. By means of the disputed laws the Seimas
changed the administrative units and their boundaries and
established the procedure of the implementation of such
changing. Therefore, such legal treatment does not deny the
provisions of Paragraph 1 of Article 33, Paragraph 1 of Article
69 and Paragraph 2 of Article 120 of the Constitution.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representatives of the party concerned-the
Government-A. Norkūnas and N. Rudaitis.
In the opinion of the representatives of the Government,
the provision consolidated in Article 7 of the Law on the
Territorial Administrative Units of the Republic of Lithuania
and their Boundaries (wording of 4 May 1999) whereby the
Government, prior to addressing the Seimas, shall take into
consideration the opinion of the community of the residential
area, the proposals of the local government council, shall
organise the opinion poll of local residents and shall adopt a
decision regarding the proposal to the Seimas means that the
Government must take account of the proposals, if there are
any, of the local government council, while the question
whether to present proposals to the Government is decided by
the local government council itself. Item 30 of Article 15 of
the Law on Local Self-Government (wording of 17 November 1998)
provides for the right of the local government council to
submit proposals concerning the altering of the limits of the
local government territory. There are not any provisions in
laws which would obligate the Government to demand proposals
from local government councils. However, the representatives of
the Government noted that the Ministry of Public Administration
Reforms and Local Government Affairs requested that local
government councils submit their proposals, it questioned local
governments as for the administrative units reform, i.e. as
regards establishment of new local governments, setting and
changing their boundaries. Such proposals were received and
they were examined.
The representatives of the Government also pointed out
that on 2-7 March 1999, the Market and Opinion Research Centre
"Vilmorus" conducted the opinion poll of the residents
concerning establishment of new local governments as per order
of the Ministry of Public Administration Reforms and Local
Government Affairs.
According to A. Norkūnas and N. Rudaitis, the disputed
resolution is in compliance with Item 2 of Article 94,
Paragraph 1 of Article 33 and Paragraph 2 of Article 120 of the
Constitution, as well as Articles 7 and 13 of the Law on the
Territorial Administrative Units of the Republic of Lithuania
and their Boundaries (wording of 4 May 1999) and Item 30 of
Article 15 of the Law on Local Self-Government (wording of 17
November 1998).
V
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the specialists-Dr. E. Šileikis, senior assistant
at the Department of Public Law of the Faculty of Law, Vilnius
University, and Assoc. Prof. Dr. R. Stačiokas who works at the
Accounting Department of the Economics and Management Faculty,
Kaunas Technological University.
VI
1. In the Constitutional Court hearing the representatives
of the petitioner V. P. Andriukaitis and P. Papovas virtually
reiterated the arguments set down in the petition.
2. In the Constitutional Court hearing the representative
of the party concerned-the Seimas-R. Varslauskas and the
representatives of the party concerned-the Government-A.
Norkūnas and N. Rudaitis virtually reiterated the arguments set
down in their written explanations.
3. In the Constitutional Court hearing the specialist
Assoc. Prof. Dr. V. Gaidys, Director of the Market and Opinion
Research Centre "Vilmorus" spoke who explained the procedure of
the opinion poll of the local residents, which was conducted on
2-7 March 1999.
The Constitutional Court
holds that:
I
1. On 29 November 1999, the Government adopted Resolution
No. 1307 "On a Draft Law on Amending Articles 4 and 5 of the
Law on the Territorial Administrative Units of the Republic of
Lithuania and their Boundaries and a Draft Law on the
Enforcement of the Law on Amending Articles 4 and 5 of the Law
on the Territorial Administrative Units of the Republic of
Lithuania and their Boundaries" wherein it is established:
"1. To approve the draft Law on Amending Articles 4 and 5
of the Law on the Territorial Administrative Units of the
Republic of Lithuania and their Boundaries and the draft Law on
the Enforcement of the Law on Amending Articles 4 and 5 of the
Law on the Territorial Administrative Units of the Republic of
Lithuania and their Boundaries and submit them to the Seimas
for consideration.
2. To request that the Seimas of the Republic of Lithuania
consider the aforesaid draft laws under the urgency procedure."
On 21 December 1999, the Seimas adopted the Law on
Supplementing Articles 4 and 14 and Amending Article 5 of the
Law on the Territorial Administrative Units of the Republic of
Lithuania and their Boundaries by means of which the Seimas
established new local governments, abolished one local
government which had existed until then, and changed the
boundaries of certain former local governments and their
centres. On the same day the Seimas passed the Law on the
Enforcement of the Law on Supplementing Articles 4 and 14 and
Amending Article 5 of the Law on the Territorial Administrative
Units of the Republic of Lithuania and their Boundaries.
On 12 January 2000, the Seimas adopted the Law on Amending
Articles 3 and 4 of the Law on the Enforcement of the Law on
Supplementing Articles 4 and 14 and Amending Article 5 of the
Law on the Territorial Administrative Units of the Republic of
Lithuania and their Boundaries by means of which it established
the territories and boundaries of certain local governments.
2. The petitioner-a group of Seimas members-doubts whether
the disputed resolution of the Government is in conformity with
Articles 7 and 13 of the Law on the Territorial Administrative
Units of the Republic of Lithuania and their Boundaries
(wording of 4 May 1999), Item 30 of Article 15 of the Law on
Local Self-Government (wording of 17 November 1998) and
Paragraph 1 of Article 33, Item 2 of Article 94 and Paragraph 2
of Article 120 of the Constitution, as well as whether the Law
on Supplementing Articles 4 and 14 and Amending Article 5 of
the Law on the Territorial Administrative Units of the Republic
of Lithuania and their Boundaries, the Law on the Enforcement
of the Law on Supplementing Articles 4 and 14 and Amending
Article 5 of the Law on the Territorial Administrative Units of
the Republic of Lithuania and their Boundaries and the Law on
Amending Articles 3 and 4 of the Law on the Enforcement of the
Law on Supplementing Articles 4 and 14 and Amending Article 5
of the Law on the Territorial Administrative Units of the
Republic of Lithuania and their Boundaries are in compliance
with Paragraph 1 of Article 33, Paragraph 1 of Article 69 and
Paragraph 2 of Article 120 of the Constitution.
3. The petitioner maintains that the Government adopted
the disputed resolution without following the procedure
provided for in Articles 7 and 13 of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries (wording of 4 May 1999) and that provided for in
Item 30 of Article 15 of the Law on Local Self-Government
(wording of 17 November 1998), i.e. it did not request and did
not receive any proposals from local government councils as
regards changing the boundaries of local governments, nor did
it organise opinion polls of local residents under the
procedure established by the Government.
On the basis of the same arguments, the petitioner points
out that on the grounds of the aforementioned resolution the
Seimas adopted the disputed Law on Supplementing Articles 4 and
14 and Amending Article 5 of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries and the disputed Law on the Enforcement of the Law
on Supplementing Articles 4 and 14 and Amending Article 5 of
the Law on the Territorial Administrative Units of the Republic
of Lithuania and their Boundaries.
Thus, the petitioner doubts whether in the course of the
enactment of the disputed legal acts the procedure of their
enactment was not violated. Taking account of the arguments of
the petitioner, in this case the Constitutional Court will
consider whether the disputed resolution according to the
procedure of its enactment is in compliance with Articles 7 and
13 of the Law on the Territorial Administrative Units of the
Republic of Lithuania and their Boundaries (wording of 4 May
1999), Item 30 of Article 15 of the Law on Local
Self-Government (wording of 17 November 1998) and Paragraph 1
of Article 33, Item 2 of Article 94 and Paragraph 2 of Article
120 of the Constitution as well as whether the Law on
Supplementing Articles 4 and 14 and Amending Article 5 of the
Law on the Territorial Administrative Units of the Republic of
Lithuania and their Boundaries and the Law on the Enforcement
of the Law on Supplementing Articles 4 and 14 and Amending
Article 5 of the Law on the Territorial Administrative Units of
the Republic of Lithuania and their Boundaries, according to
the procedure of their enactment, are in compliance with
Paragraph 1 of Article 33, Paragraph 1 of Article 69 and
Paragraph 2 of Article 120 of the Constitution.
4. The petitioner also maintains that, on 12 January 2000,
on the basis of the disputed resolution the Seimas enacted the
Law on Amending Articles 3 and 4 of the Law on the Enforcement
of the Law on Supplementing Articles 4 and 14 and Amending
Article 5 of the Law on the Territorial Administrative Units of
the Republic of Lithuania and their Boundaries. It needs to be
noted that the draft of this law was submitted to the Seimas on
the basis of Government Resolution No. 21 "On Submitting the
Draft Law on Amending Articles 3 and 4 of the Law on the
Enforcement of the Law on Supplementing Articles 4 and 14 and
Amending Article 5 of the Law on the Territorial Administrative
Units of the Republic of Lithuania and their Boundaries to the
Seimas of the Republic of Lithuania" of 10 January 2000. In the
disputed Government resolution of 29 November 1999 this draft
law is not mentioned at all. The petitioner does not request to
consider the compliance of the Government resolution of 10
January 2000 with the Constitution and the laws. The petitioner
has not presented any other motives on which his doubts are
based regarding the compliance of the 12 January 2000 Law on
Amending Articles 3 and 4 of the Law on the Enforcement of the
Law on Supplementing Articles 4 and 14 and Amending Article 5
of the Law on the Territorial Administrative Units of the
Republic of Lithuania and their Boundaries with the
Constitution. In this case the Constitutional Court will not
consider the compliance of the 12 January 2000 Law on Amending
Articles 3 and 4 of the Law on the Enforcement of the Law on
Supplementing Articles 4 and 14 and Amending Article 5 of the
Law on the Territorial Administrative Units of the Republic of
Lithuania and their Boundaries with the Constitution.
5. The petitioner requests investigation into the
compliance of the disputed resolution with Item 30 of Article
15 of the Law on Self-Government. On 12 October 2000, the
Seimas set forth the Law on Self-Government in a new wording
(Official Gazette Valstybės žinios, 2000, No. 91-2832). In this
case the Constitutional Court will consider whether the
disputed resolution is in compliance with Item 30 of Article 15
of the Law on Self-Government (wording of 17 November 1998).
The petitioner also requests investigation into the
compliance of the disputed resolution with Article 13 of the
Law on the Territorial Administrative Units of the Republic of
Lithuania and their Boundaries. On 26 April 2001, the Seimas
adopted the Law on Supplementing Articles 1, 3, 9 and 13 of the
Law on the Territorial Administrative Units of the Republic of
Lithuania and their Boundaries (Official Gazette Valstybės
žinios, 2001, No. 41-1420) whereby Paragraph 1 of Article 13 of
the Law on the Territorial Administrative Units of the Republic
of Lithuania and their Boundaries was supplemented. In this
case the Constitutional Court will consider the compliance of
the disputed resolution with Articles 7 and 13 of the Law on
the Territorial Administrative Units of the Republic of
Lithuania and their Boundaries (wording of 4 May 1999).
II
1. Article 11 of the Constitution provides that the
administrative divisions of the territory of the State of
Lithuania and their boundaries shall be determined by law.
Under Paragraph 1 of Article 119 of the Constitution,
administrative units provided by law on state territory shall
be entitled to the right of self-government, which shall be
implemented through local government councils.
Article 120 of the Constitution provides:
"The State shall support local governments.
Local governments shall act freely and independently
within the limits of their competence which shall be
established by the Constitution and laws."
These provisions of the Constitution and those of
Paragraphs 1 and 2 of Article 123 of the Constitution as well
as other constitutional provisions mean that in administrative
units the centralised state administration is being coordinated
with local self-government.
2. Paragraph 1 of Article 33 of the Constitution provides:
"Citizens shall have the right to participate in the government
of their State both directly and through their freely elected
representatives, and shall have the equal opportunity to serve
in a State office of the Republic of Lithuania."
In the context of the case at issue the provision of
Paragraph 1 of Article 33 of the Constitution that citizens
shall have the right to participate in the government of their
state both directly and through their freely elected
representatives is to be assessed not only as the right of
citizens but also as a duty of institutions of power, including
the legislator, to find out the opinion of local residents when
decisions are adopted concerning changes of the boundaries of
administrative-territorial units. This is in line with the
strife for an open, just, and harmonious civil society
established in the Constitution.
It needs to be noted that in the European Charter of Local
Self-Government, which was ratified by the Seimas on 25 May
1999, it is emphasised that the right of citizens to
participate in the conduct of public affairs is one of
democratic principles and that it is at local level that this
right may be most directly exercised. Article 5 of this charter
provides also that changes in local authority boundaries shall
not be made without prior consultation of local communities
concerned, possibly by means of a referendum where this is
permitted by statute.
3. Under the Constitution, it is only the Seimas and by
means of a law only that may determine the administrative
divisions and their boundaries, thus also to abolish the
existing and establish new local governments, change their
boundaries and centres. In doing so, the Seimas is bound by the
procedure of decision of these questions which is established
in laws. The manner of determination of the administrative
divisions and their boundaries is regulated in Articles 7 and
13 of the Law on the Territorial Administrative Units of the
Republic of Lithuania and their Boundaries (wording of 4 May
1999) and Item 30 of Article 15 and Paragraph 3 of Article 24
of the Law on Local Self-Government (wording of 17 November
1998).
Article 7 of the Law on the Territorial Administrative
Units of the Republic of Lithuania and their Boundaries
(wording of 4 May 1999) provides that the local governments
shall be established and abolished, as well as their boundaries
and centres shall be set and changed by the Seimas on the
proposal of the Government. Prior to addressing the Seimas, the
Government shall take into consideration the opinion of the
community of the residential area, the proposals of the local
government council, shall organise the opinion poll of local
residents and shall adopt a decision regarding the proposal to
the Seimas.
Article 13 of the said law provides:
"The institution empowered by the Government shall
consider and present conclusions to the Government on the
proposals to establish or abolish local governments, other
administrative units of the territory and residential areas and
to set or change their boundaries.
The procedure of the opinion poll of local residents shall
be established by the Government of the Republic of Lithuania.
The institution empowered by the Government, when
presenting a conclusion on the establishment of administrative
units, setting or changing their boundaries, shall present the
results of the opinion poll of the local residents, their
requests and proposals of the local government council, and
shall assess the reasonableness and expediency of the opinion
of the community of the residential area and the local
government council. The institution shall also present 1:100000
scale plans (2 copies) of such administrative units, containing
the proposed changes, and if the boundaries of the territory,
which are being changed, do not coincide with the boundaries of
the land users-1:10000 scale plans of the boundaries (2
copies). The plans must be approved by the county governor and
the Registrar of the Territorial Administrative Units of the
Republic of Lithuania and Residential Areas."
Item 30 of Article 15 of the Law on Local Self-Government
(wording of 17 November 1998) provides that local government
councils shall have the right to submit proposals concerning
the altering of the limits of the local government territory.
4. The said provisions of the Constitution, the European
Charter of Local Self-Government and of the laws pre-suppose
the right of local communities and local governments to take
part, under procedure provided for in laws, in decision-making
regarding establishment and abolishment of local governments,
determination and changing of their boundaries and centres. In
the course of decision-making regarding establishment and
abolishment of local governments, determination and changing of
the limits of their territories and centres the legislator must
find out the opinions of the local government councils and
communities and consider them.
5. As mentioned, Article 13 of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries (wording of 4 May 1999) provides that the procedure
of the opinion poll of local residents shall be established by
the Government. By its Resolution No. 1019 "On the Approval of
the Procedure of the Opinion Poll of Local Residents" of 20
September 1999 the Government approved the Procedure of the
Opinion Poll of Local Residents wherein it is established that
the opinion poll shall be organised in the territories in which
one provides to establish or abolish territorial administrative
units of the Republic of Lithuania, to determine an change
their boundaries, as well as it is established therein as to
who the subjects of the poll may be, who the organiser and
coordinator of the poll are, as well as it provides for those
entitled to propose to conduct the poll and the procedures of
the poll. Item 27 if this Government resolution provides that
"in the course of the adoption of decisions connected with the
reform of territorial administrative units of the Republic of
Lithuania the poll results must be assessed and taken into
consideration. In cases when no account is taken of the poll
results, this must be comprehensively reasoned."
The fact must also be emphasised that the provision
established in Article 7 of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries (wording of 4 May 1999) that the Government, prior
to addressing the Seimas, shall take into consideration the
proposals of the local government council means that local
government councils are entitled to present proposals on
changing the boundaries of the local governments and their
centres. An analogous provision is formulated in Item 30 of
Article 15 of the Law on Local Self-Government (wording of 17
November 1998) wherein it is established that that local
government councils submit proposals concerning the altering of
the boundaries of the local government.
Paragraph 3 of Article 24 of the Law on Local
Self-Government (wording of 17 November 1998) provides that "in
cases when higher state institutions consider matters related
to interests of a local government, the former must inform the
local government about this. The council shall submit proposals
which must be considered by higher state institutions", while
Paragraph 4 thereof provides that "the Government and its
institutions shall coordinate the decisions on issues
concerning the planning of the State territory with local
governments and propose the changes in the boundaries of local
governments, taking into consideration the proposals of local
governments." Thus, the initiative of the Government and its
institutions on issues concerning territorial planning must
always be coordinated with local governments, i.e. local
government councils must be requested to submit proposals and
the received proposals must be considered.
6. Item 2 of Article 94 of the Constitution stipulates
that the Government shall implement laws and resolutions of the
Seimas concerning the implementation of laws, as well as the
decrees of the President of the Republic. Thus, while adopting
the disputed resolution, the Government had to accomplish all
the requirements of the aforementioned laws. It is also bound
by the resolutions which it adopted itself. Therefore, the
Government, while adopting the disputed resolution, had to
follow its Resolution No. 1019 "On the Approval of the
Procedure of the Opinion Poll of Local Residents" of 20
September 1999.
III
On the compliance of Government Resolution No. 1307 "On a
Draft Law on Amending Articles 4 and 5 of the Law on the
Territorial Administrative Units of the Republic of Lithuania
and their Boundaries and a Draft Law on the Enforcement of the
Law on Amending Articles 4 and 5 of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries" of 29 November 1999 with Articles 7 and 13 of the
Law on the Territorial Administrative Units of the Republic of
Lithuania and their Boundaries (wording of 4 May 1999), Item 30
of Article 15 of the Law on Local Self-Government (wording of
17 November 1998), and Item 2 of Article 94, Paragraph 1 of
Article 33, Paragraph 2 of Article 120 of the Constitution
1. The petitioner has doubts whether the disputed
resolution, according to the procedure of its enactment, is in
compliance with Articles 7 and 13 of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries (wording of 4 May 1999), Item 30 of Article 15 of
the Law on Local Self-Government (wording of 17 November 1998),
and Item 2 of Article 94, Paragraph 1 of Article 33, Paragraph
2 of Article 120 of the Constitution.
2. To decide whether the disputed resolution is in
compliance with Articles 7 and 13 of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries (wording of 4 May 1999), Item 30 of Article 15 of
the Law on Local Self-Government (wording of 17 November 1998),
and the Constitution, it is important to establish whether the
requirements set forth in the laws and Government resolution of
20 September 1999 were implemented, i.e., whether the opinion
poll was conducted following the procedure established by the
Government or not, whether its findings were assessed or not,
and whether the Government and/or the institution empowered by
it requested the local government councils to submit proposals
regarding the changing of local government boundaries and
whether it considered them or not.
The material provided by the representatives of the party
concerned-the Government-indicates that the opinion poll, under
Government Resolution No. 1019 "On the Approval of the
Procedure of the Opinion Poll of Local Residents" of 20
September 1999, had not been conducted in the course of the
adoption of the disputed resolution of 29 November 1999 by the
Government.
The representatives of the party concerned-the
Government-assert that the Government did not violate the
established procedure by adopting the disputed resolution, as,
upon the commission by the institution empowered by it, i.e.
the Ministry of Public Administration Reforms and Local
Government Affairs, the Market and Opinion Research Centre
"Vilmorus" conducted the opinion poll of local residents on 2-7
March 1999. The Constitutional Court notes that this opinion
poll had been conducted before the Government Resolution "On
the Approval of the Procedure of the Opinion Poll of Local
Residents" of 20 September 1999 went into effect. The disputed
resolution, however, was passed on 29 November 1999, therefore,
in the course of its adoption, one ought to have followed
Government Resolution No. 1019 "On the Approval of the
Procedure of the Opinion Poll of Local Residents" of 20
September 1999. It has already been held in the present Ruling
of the Constitutional Court that the Government is bound by its
resolutions and that the opinion poll, following the procedure
established by the said Government resolution, was not
conducted. The statements made by the representative of the
party concerned-the Government-asserting that the opinion poll
conducted on 2-7 March 1999 was in conformity with the
procedure established in Government resolution of 20 September
1999 are untenable.
3. The petitioner requests to investigate whether the
disputed resolution, according to the procedure of its
enactment, is in compliance with whole Article 13 of the Law on
the Territorial Administrative Units of the Republic of
Lithuania and their Boundaries (wording of 4 May 1999).
Paragraph 1 of Article 13 of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries (wording of 4 May 1999) prescribes that "the
institution empowered by the Government shall consider and
present conclusions to the Government on the proposals to
establish or abolish local governments, other administrative
units of the territory and residential areas and to set or
change their boundaries".
Paragraph 2 of Article 13 of said Law stipulates that "the
procedure of the opinion poll of local residents shall be
established by the Government of the Republic of Lithuania".
It should be noted that the disputed Government resolution
does not contain any provisions denying the norms contained in
Paragraph 1 of Article 13 of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries (wording of 4 May 1999), stipulating that the
institution empowered by the Government shall consider and
present conclusions to the Government on the proposals to
establish or abolish local governments, other administrative
units of the territory and residential areas and to set or
change their boundaries.
Neither does the disputed Government resolution contain
any provisions denying the norm of Paragraph 2 of Article 13 of
the Law on the Territorial Administrative Units of the Republic
of Lithuania and their Boundaries (wording of 4 May 1999),
providing that the procedure of the opinion poll of local
residents shall be established by the Government of the
Republic of Lithuania. The Government established the said
procedure of the opinion poll of local residents by another
resolution, the one dated 20 September 1999, and not by the
disputed resolution.
Taking account of the arguments set forth, one is to
conclude that the disputed resolution, according to the
procedure of its enactment, is in compliance with Paragraphs 1
and 2 of Article 13 of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries (wording of 4 May 1999).
Paragraph 3 of Article 13 of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries (wording of 4 May 1999) stipulates that "the
institution empowered by the Government, when presenting a
conclusion on the establishment of administrative units,
setting or changing their boundaries, shall present the results
of the opinion poll of the local residents, their requests and
proposals of the local government council, and shall assess the
reasonableness and expediency of the opinion of the community
of the residential area and the local government council. The
institution shall also present 1:100000 scale plans (2 copies)
of such administrative units, containing the proposed changes,
and if the boundaries of the territory, which are being
changed, do not coincide with the boundaries of the land
users-1:10000 scale plans of the boundaries (2 copies). The
plans must be approved by the county governor and the Registrar
of the Territorial Administrative Units of the Republic of
Lithuania and Residential Areas".
It has already been held in the present Ruling of the
Constitutional Court that no opinion poll of residents,
following the procedure established by the Government
resolution of 20 September 1999, had been conducted before the
adoption of the disputed resolution. Thus the requirement
prescribed by Article 7 and Paragraph 3 of Article 13 of the
Law on the Territorial Administrative Units of the Republic of
Lithuania and their Boundaries (wording of 4 May 1999),
instructing that the institution empowered by the Government,
while preparing its conclusion on the establishment of the
territorial administrative units, setting and changing of their
boundaries, should present to the Government the findings of
the opinion poll of local residents, was not carried out. The
failure to meet this requirement alone constitutes sufficient
grounds to recognise that the disputed resolution, according to
the procedure of its enactment, is in conflict with Article 7
and Paragraph 3 of Article 13 of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries (wording of 4 May 1999).
Having held that the disputed resolution, according to the
procedure of its enactment, conflicts with Article 7 and
Paragraph 3 of Article 13 of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries (wording of 4 May 1999), one is to conclude that it
is also in conflict with Item 2 of Article 94, Paragraph 1 of
Article 33, and Paragraph 2 of Article 120 of the Constitution.
4. Taking account of the arguments set forth above, one is
to draw a conclusion that Government Resolution No. 1307 "On a
Draft Law on Amending Articles 4 and 5 of the Law on the
Territorial Administrative Units of the Republic of Lithuania
and their Boundaries and a Draft Law on the Enforcement of the
Law on Amending Articles 4 and 5 of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries" of 29 November 1999, according to the procedure of
its enactment, conflicts with Article 7 and Paragraph 3 of
Article 13 of the Law on the Territorial Administrative Units
of the Republic of Lithuania and their Boundaries (wording of 4
May 1999), as well as Paragraph 1 of Article 33, Item 2 of
Article 94, and Paragraph 2 of Article 120 of the Constitution.
5. As mentioned, Item 30 of Article 15 of the Law on Local
Self-Government (wording of 17 November 1998) establishes that
local government councils shall have the right to submit
proposals concerning the altering of the limits of the local
government territory. This provision provides for the right of
local government councils to submit proposals concerning the
altering of the limits of the local government territory, which
also means that the Government must inform the local
governments of any intended modifications of local government
boundaries and request them to submit their respective
proposals. The representatives of the party concerned-the
Government-presented material indicating that the institution
empowered by the Government, i.e. the Ministry of Public
Administration Reforms and Local Government Affairs, called for
proposals of the local government councils and discussed the
reform of administrative units, i.e. the establishment of new
local governments, establishment and changing of their
boundaries, with the local governments. Thus the Government did
not violate the requirements specified in Item 30 of Article 15
of the Law on Local Self-Government (wording of 17 November
1998).
6. Taking account of the arguments set forth above, one is
to conclude that Government Resolution No. 1307 "On a Draft Law
on Amending Articles 4 and 5 of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries and a Draft Law on the Enforcement of the Law on
Amending Articles 4 and 5 of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries" of 29 November 1999, according to the procedure of
its enactment, is in compliance with Item 30 of Article 15 of
the Law on Local Self-Government (wording of 17 November 1998).
IV
On the compliance of the Law on Supplementing Articles 4
and 14 and Amending Article 5 of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries and the Law on the Enforcement of the Law on
Supplementing Articles 4 and 14 and Amending Article 5 of the
Law on the Territorial Administrative Units of the Republic of
Lithuania and their Boundaries with Paragraph 1 of Article 69,
Paragraph 1 of Article 33, and Paragraph 2 of Article 120 of
the Constitution
1. The petitioner has doubts whether the disputed laws,
according to the procedure of their enactment, are in
compliance with Paragraph 1 of Article 69, Paragraph 1 of
Article 33, and Paragraph 2 of Article 120 of the Constitution.
2. It needs to be noted that the provision contained in
Paragraph 1 of Article 69 of the Constitution, reading that
laws shall be enacted by the Seimas following the procedure
established by law, and the provision of Article 76 that the
structure and procedures of activities of the Seimas shall be
determined by the Statute of the Seimas, mean that the
legislation procedure can be regulated by the Statute of the
Seimas as well as other laws. The procedure of enactment of
laws establishing or abolishing local governments, changing
their boundaries and centres, is prescribed by the
Constitution, the Statute of the Seimas, the Law on the
Territorial Administrative Units of the Republic of Lithuania
and their Boundaries, and the Law on Local Self-Government.
These matters are also regulated by the European Charter on
Local Self-Government.
3. As mentioned, Paragraph 3 of Article 24 of the Law on
Local Self-Government (wording of 17 November 1998) establishes
that "in cases when higher state institutions consider matters
related to interests of a local government, the former must
inform the local government about this. The council shall
submit proposals which must be considered by higher state
institutions." Article 5 of the European Charter on Local
Self-Government also stipulates that changes in local authority
boundaries shall not be made without prior consultation of
local communities concerned, possibly by means of a referendum
where this is permitted by statute. Thus pursuant to the Law on
Local Self-Government and the European Charter on Local
Self-Government, the Seimas has to examine and deliberate the
proposals of the local government councils and the opinion of
the local communities before considering the issues related to
the establishment or abolishment of local governments, setting
and changing of their boundaries and centres.
It has already been held in the present Ruling of the
Constitutional Court that the disputed resolution, according to
the procedure of its enactment, conflicts with Article 7 and
Paragraph 3 of Article 13 of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries (wording of 4 May 1999), and Item 2 of Article 94,
Paragraph 1 of Article 33, Paragraph 2 of Article 120 of the
Constitution. The material furnished by the representatives of
the party concerned-the Seimas-indicates that the Seimas did
not examine or deliberate the proposals of the local government
councils or the opinion of the local communities before passing
the disputed laws, whose drafts had been submitted on the
grounds of the disputed resolution. Therefore it may be
concluded that the Seimas failed to observe the requirements
set forth in Paragraph 3 of Article 24 of the Law on Local
Self-Government (wording of 17 November 1998) and Article 5 of
the European Charter on Local Self-Government.
4. Taking account of the above-mentioned arguments, one is
to conclude that, according to the procedure of their
enactment, the Law on Supplementing Articles 4 and 14 and
Amending Article 5 of the Law on the Territorial Administrative
Units of the Republic of Lithuania and their Boundaries and the
Law on the Enforcement of the Law on Supplementing Articles 4
and 14 and Amending Article 5 of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries conflict with Paragraph 1 of Article 69, Paragraph 1
of Article 33 and Paragraph 2 of Article 120 of the
Constitution.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the
Republic of Lithuania Law on the Constitutional Court, the
Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
1. To recognise that Government of the Republic of
Lithuania Resolution No. 1307 "On a Draft Law on Amending
Articles 4 and 5 of the Law on the Territorial Administrative
Units of the Republic of Lithuania and their Boundaries and a
Draft Law on the Enforcement of the Law on Amending Articles 4
and 5 of the Law on the Territorial Administrative Units of the
Republic of Lithuania and their Boundaries" of 29 November
1999, according to the procedure of its enactment, conflicts
with Article 7 and Paragraph 3 of Article 13 of the Republic of
Lithuania Law on the Territorial Administrative Units of the
Republic of Lithuania and their Boundaries (wording of 4 May
1999), Item 2 of Article 94, Paragraph 1 of Article 33 and
Paragraph 2 of Article 120 of the Constitution of the Republic
of Lithuania.
2. To recognise that Government of the Republic of
Lithuania Resolution No. 1307 "On a Draft Law on Amending
Articles 4 and 5 of the Law on the Territorial Administrative
Units of the Republic of Lithuania and their Boundaries and a
Draft Law on the Enforcement of the Law on Amending Articles 4
and 5 of the Law on the Territorial Administrative Units of the
Republic of Lithuania and their Boundaries" of 29 November
1999, according to the procedure of its enactment, is in
compliance with Paragraphs 1 and 2 of Article 13 of the
Republic of Lithuania Law on the Territorial Administrative
Units of the Republic of Lithuania and their Boundaries
(wording of 4 May 1999) and Item 30 of Article 15 of the
Republic of Lithuania Law on Local Self-Government (wording of
17 November 1998).
3. To recognise that, according to the procedure of their
enactment, the Republic of Lithuania Law on Supplementing
Articles 4 and 14 and Amending Article 5 of the Law on the
Territorial Administrative Units of the Republic of Lithuania
and their Boundaries and the Republic of Lithuania Law on the
Enforcement of the Law on Supplementing Articles 4 and 14 and
Amending Article 5 of the Law on the Territorial Administrative
Units of the Republic of Lithuania and their Boundaries
conflict with Paragraph 1 of Article 69, Paragraph 1 of Article
33 and Paragraph 2 of Article 120 of the Constitution of the
Republic of Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.